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96th Congress 1 



1st Session 



COMMITTEE PRINT 



COMMITTEE ON THE JUDICIARY 
PROGRAM FOR THE FIRST SESSION 



OF THE 



96th CONGRES 



Printed at the Dj 
Hon. EDWARD M. KENK 

FOR THE USE OF THE 

COMMITTEE OX THE JUDICIARY 
UNITED STATES SENATE 





APRIL 1979 



40-315 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1979 



COMMITTEE ON THE JUDICIARY 



EDWARD M. KENNEDY, 
BIRCH BATH, Indiana 
ROBERT C. BYRD, West Virginia 
JOSEPH R. BIDEN, Jr., Delaware 
JOHN C. CULVER, Iowa 
HOWARD M. METZENBAUM, Ohio 
DENNIS DeCONCINI, Arizona 
PATRICK J. LEAHY, Vermont 
MAX BAUCUS, Montana 
HOWELL HEFLIN, Alabama 



Massachusetts, Chairman 

STROM THURMOND, South Carolina 

CHARLES McC. MATHIAS, Jr., Maryland 

PAUL LAXALT, Nevada 

ORRIN G. HATCH, Utah 

ROBERT DOLE, Kansas 

THAD COCHRAN. Mississippi 

ALAN K. SIMPSON, Wyoming 



David Boies, Chief Counsel and Staff Director 



(ID 



CONTENTS 



Page 

Letter of Transmittal vn 

Historical perspective 1 

Nominations 3 

Judicial nominations 3 

Nonjudicial nominations 4 

Antitrust 5 

Antitrust procedural reform 5 

Attempts to monopolize 6 

Capper- Volstead Act 6 

Competitive conditions in the refining industry 6 

Concentration and inflation 

Mergers 7 

Defense procurement 7 

Health insurance and physician compensation 8 ; 

Consumer antitrust actions s 

No-conduct monopoly tf 

Oil company ownership of alternative energy sources 9 

Oversight of Department of Justice antitrust policy 9 

Repeal of the McCarran-Ferguson antitrust exemption and 

provisions to advance equitable pricing 

Retail petroleum operations by oil companies 10 

Vertical integration in the petroleum industry 10 

"Webb-Pomerene Act 10 

Motion picture distribution practices 11 

Professional sports 11 

Civil justice and court reform 13 

Standing 13 

Class actions 13 

Diversity 14 

Magis f rates and court annexed arbitration 14 

Dispute Resolution Act 15 

Federal Courts Improvement Act of 1970 15 

Future role of the Federal courts 15 

Pension reform 16 

Rate-of-return cost disclosure in life insurance 16 

Shareholders rights and corporate governance 16 

Criminal justice 18 

FBI charter lg 

Victims of crime lg 

Surreptitious entries 19 

Exclusionary rule 19' 

Grand jury reform 19 1 

Department of Justice oversight 20 

(iii) 



IV 



Computer fraud and white collar crime 20 

"Graymail" legislation ~ 2 

International terrorism ~~~ 20 

Children's issues 1ZZZ1 20 

Prison reform and modernization Z111Z1Z 21 

Title 18 amendments " 21 

Autotheft — — — 

The Criminal Code Reform Act of 1979— '11111111 ~~ 21 

The Justice System Improvement Act of 1979 ~~~ 21 

Immigration and refugees ~ 22 

Select Commission on Immigration and Refugee policy 1 22 

Refugee reform legislation ~~ 23 

Undocumented aliens ~_~ 23 

Nationality provision of law ~_ 23 

Other legislative proposals ~~ 24 

Private immigration bills ~~ 24 

Oversight ~ 24 

Constitutional rights 25 

Proposed constitutional amendments 25 

Direct popular election of the President and the Vice 

President 25 

Constitutional limits on the Federal budget 25 

Constitutional convention procedures 26 

Abortion and freedom of choice 26 

Rights of privacy 27 

Limitations on the use of polygraphs and other supposed 

lie detection devices 27 

Police searches against nonsuspects 27 

First Amendment 28 

Reporters shield 28 

Cameras in the courtroom 28 

The Judiciary 28 

Judicial discipline 28 

Extrajudicial activities 28 

Speedy Trial Act 28 

Civil and Constitutional Rights .- 29 

Rights of institutionalized persons 29 

Civil Rights Acts oversight .- 29 

U.S. Commission on Civil Rights .- 30 

Attorneys fees 30 

Voting rights 30 

Rights of children 30 

Juvenile Justice Act , 31 

Discrimination against the elderly 31 

Administrative practice and procedure 32 

Reform of Administrative Procedure Act 32 

Regulatory Flexibility Act 32 

Public participation in Federal agency proceedings 33 

Administrative Conference 33 

Government information policies 34 

Freedom of Information Act 34 

Privacy 34 

Federal Tort Claims Act Amendments 35 



Page 

Kegulatory reform 36 

Applicability of antitrust principles 36 

Motor carrier industry 36 

Competition Improvements Act 37 

Anticompetitive effects of Government regulation 37 

Department of Justice authorization and oversight 38 

Investigations 39 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/onjudic1979unit 



LETTER OF TRANSMITTAL 



U.S. Senate, 
Committee on the Judiciary, 

Washington, D.C., April, 1979. 
Dear Colleague: Pursuant to the resolution adopted at our busi- 
ness meeting on February 1, 1979, I have filed with the Committee 
on Rules and Administration our resolution requesting funding for 
the work of the Committee on the Judiciary for the first session of the 
96th Congress. 

To amplify our funding request, I have prepared a projection of the 
activities to be undertaken in the 96th Congress. 
Sincerely yours, 

Edward M. Kennedy, 

Chairman. 

(VII) 



HISTORICAL PERSPECTIVE 

On the day after the Senate first convened in 1789, eight Senators 
were designated to develop a bill which eventually became the Judici- 
ary Act of 1789, one of the principal legislative achievements of the 
1st Congress. This measure and other laws enacted during the first 
several decades of the Senate's history were referred to select commit- 
tees appointed specifically for that purpose. As the workload of Con- 
gress grew, however, first the House and then the Senate began to de- 
velop standing committees. The first standing legislative committees 
of the Senate were created in 1816, and included a Committee on the 
Judiciary complementing the House Committee established 3 years 
earlier. 

The initial responsibility of the Senate Committee included scrutiny 
of measures concerning the courts, law enforcement, and judicial act- 
ministration. These matters remain at the core of the committee's 
jurisdiction, but many other important responsibilities have been 
added. Early additions were bankruptcy policy and state boundaries. 
The Legislative Reorganization Act of 1946 added several subjects 
therptofore assigned to other Senate committees. The question of ap- 
portioning Representatives, for example, had been considered by the 
Judiciary Committee as early as the 17th Congress, but was later trans- 
ferred to the Committee on Commerce until 1946. when it was returned 
to the Judiciary Committee. Jurisdiction over patents, trademarks, and 
copvright policy initially resided with Judiciary, until the Senate cre- 
ated its Committee on Patents in 1837. Likewise, immigration and nat- 
uralization measures were considered by the committee until 1889, when 
the Committee on Immigration was established. In 1946, these and 
other subjects were restored to the jurisdiction of the Judiciary Com- 
mittee as part of a committee consolidation substantially reducing the 
number of standing Senate committees. 

The Judiciary Committee's jurisdiction over proposed constitutional 
amendments has grown less erratically. The committee considered only 
two proposed amendments before the Civil "War. but two out of every 
three such proposals during the 25 years following. All but 3 per- 
cent of the amendments introduced in the Senate between 1923 and 
1946 were referred to Judiciary, and its jurisdiction became exclusive 
thereafter. 

There has been a similar development in the committee's responsibil- 
ity for considering judicial and certain executive branch nominations. 
In 1868, the Senate determined that all nominations should be referred 
to appropriate standing committees. Prior to that time, nominations 
were referred by motion only, and no more than perhaps one out of 
three Supreme Court nominations was sent to the committee for initial 
consideration. _ Since the Reconstruction period, however, the com- 
mittee's role in confirmation proceedings has become increasingly 
commonplace. 

(1) 

40-315—79 2 



Inevitably, given its important and growing responsibilities, the 
Judiciary Committee historically has borne a significant share of the 
Senate's workload. Following World War I, as much as 10 percent of 
the Senate's business may have been referred to the committee. Fol- 
lowing 1946, when components of its jurisdiction was added or re- 
stored, the committee has often been responsible for 30 to 40 percent 
or more of all measures in the Senate. It is not surprising, therefore, 
that the committee has grown in size commensurate with its growing 
responsibilities. Those functions range from judicial systems and the 
effective administration of civil justice, to more selective responsibili- 
ties over immigration and copyright. They encompass the broad and 
complex questions attending economic growth and competition, as fos- 
tered by the operation of antitrust legislation. They embrace the full 
panoply of constitutional rights and duties, which evolve not only 
through judicial decisions, but through protective legislation. And, in 
all of these endeavors, they implicate those matters at the heart of our 
constitutional democracy, from the definition of justice, to the struc- 
ture of a capitalist system, to the most fundamental of constitutional 
rights. 



NOMINATIONS 

Article II, section 2 of the Constitution gives the President the 
power to appoint the principal officers of the Federal Government "by 
and with the Advice and Consent of the Senate." The Committee on 
the Judiciary has a unique role in reviewing nominations. It considers 
the choice not only of Federal administrators but also of judges and 
judicial officers — the principal decision makers of a separate "non- 
political" branch of the Federal Government. During the 96th Con- 
gress, the process of appointments to the Federal bench will be one of 
the major responsibilities of the committee. With passage of the Omni- 
bus Judgeship Act of 1978, the committee will have the awesome task 
of confirming approximately one-third of the entire Federal judiciary. 

Judicial Nominations 

The Omnibus Judgeship Act, passed in the 2d session of the 95th 
Congress, created 152 new judgeship positions: 117 positions for Fed- 
eral District Courts and 35 positions for the eleven Federal Circuit 
Courts. When these positions are added to those vacated through 
normal rates of attrition, it can be anticipated that more than 200 
men and women will be appointed during this Congress. In contrast, 
the committee considered only 44 nominees to Federal judgeships dur- 
ing the 94th and 71 during the 95th Congress. The magnitude of the 
committee's responsibilities is very apparent. 

In the Omnibus Judgeships Act and by Executive order, both Con- 
gress and the President have gone on record in support of merit selec- 
tion of the Federal judiciary. In order to ensure that only the highest 
qualified nominees are confirmed for positions on the Federal bench, 
the committee will establish a new process of evaluating the qualifica- 
tions of the men and women whose names are submitted to it. 

An extensive questionnaire has been developed in order to provide 
the maximum information to the committee about each candidate. The 
questionnaire, which is to be filled out by each nominee, covers matters 
of background, training, experience, organizational activities, writ- 
ings, attitudes concerning equal justice under law, finances, and pos- 
sible conflicts of interest. Portions of the questionnaire will be made 
available to the public for inspection and comments. 

A special investigative staff responsible for a careful study and 
analysis of the background and qualifications of nominees has also 
been assembled and the committee has arranged to obtain access to FBI 
reports and other investigative materials of the Department of Justice. 

The Chairman has established general nomination procedures to be 
followed in processing each nomination. Upon receipt of a nomination 
from the President, the committee will give public notice, issue blue 
slips to the Senators from the nominee's State requesting their com- 
ments, and send its questionnaire to the nominee. The committee will 

(3) 



4 

also solicit comments about each nominee from the American Bar As- 
sociation and other interested organizations and individuals. Upon 
completion of its investigation of the nominee, the committee will set 
a confirmation hearing date. It is anticipated that approximately 50 
separate confimation hearings will be held. 

The committee will endeavor to continually reevaluate its confirma- 
tion procedures with an eye toward establishing an efficient, compre- 
hensive process by which the Senate can carry out its advice and 
consent responsibilities. To this end the committee intends to closely ex- 
amine the entire selection and confirmation process and will hold ex- 
tensive oversight hearings into the role of the various Government 
agencies, nominating commissions and panels and private organizations 
which influence the selection of Federal judges. Of particular concern 
will be the efforts made to guarantee that the Federal courts are more 
representative of all the people of this Nation. 

NON-JUDICIAL XOMIXATIONS 

The Committee on the Judiciary will also act upon the nominations 
of top administrators and policymakers in the executive branch 
of the Government. Nominees for the following agencies are processed 
in the committee : Department of Justice, Administrative Conference 
of the United States ; all United States Attorneys; the judge, attorney 
and marshal for the Canal Zone ; the Civil Rights Commission ; Com- 
munity Relations Service; Court of Claims; Court of Customs and 
Patent; Appeals; U.S. Customs Court; Drug Enforcement Adminis- 
tration ; Federal Bureau of Investigation ; Foreign Claims Settlement 
Commission ; the judge, attorney and marshal for Guam ; Immigration 
and Naturalization Service ; Law Enforcement Assistance Administra- 
tion ; Parole Commission and the Patent Office. 

The committee intends to undertake a comprehensive study of the 
confirmation process for nominations to each agency or court and will 
establish procedures to guarantee the selection and confirmation of 
highly qualified individuals. 



ANTITRUST 

Effective antitrust laws and effective enforcement of those laws are 
perhaps more important today than at any time in our Nation's his- 
tory. As we suffer the costs of inflation and the constraints of limited 
resources, we need an economic system which allocates resources effi- 
ciently, by providing the highest quality products at the lowest possible 
prices. That means not only vigorous antitrust enforcement by Gov- 
ernment, but also the recognition that governmental regulation or 
interference can be anticompetitive. Where Government regulation 
itself produces waste or inhibits free competition, the role of market 
forces must be enhanced. Where undue market power operates to stifle 
competition, the appropriate role of Government is prescribed by 
our antitrust laws. 

Both goals are mirror images of the same broad objective: promo- 
tion of competition in the marketplace. And promotion of competi- 
tion in the marketplace is the key to protecting consumers' real 
incomes, the Nation's resources, and individual citizen's political free- 
dom. As the Supreme Court eloquently stated in Northern Pacific 
Railway v. U.S., 356 U.S. 1, 4-5 (1958) in explaining the function 
of the Sherman Act, the core of our antitrust statutory framework: 
The Sherman Act was designed to be a comprehensive charter 
of economic liberty aimed at preserving free and unfettered com- 
petition as the rule of trade. It rests on the premise that the un- 
restrained interaction of competitive forces will yield the best 
allocation of our economic resources, the lowest prices, the highest 
quality and the greatest material progress, while at the same time 
providing an environment conducive to the preservation of our 
democratic political and social institutions. 
The Judiciary Committee is charged with legislative responsibility 
for protecting "trade and commerce against unlawful restraints and 
monopolies." To that end, it is the committee's mandate to ascertain 
whether the antitrust laws are working effectively. If they are not, then 
the committee must determine whether enhanced enforcement efforts 
of existing laws are called for or whether new laws are needed. That is 
the framework pursuant to which hearings will be held this session, 
and legislation will be framed. 

Antitrust Procedural Reform 

Early in the session, hearings will be held on proposed antitrust 
procedural reforms— including the legislative recommendations of the 
National Commission for Review of Antitrust Laws and Procedures, 
the Federal Trade Commission and the Department of Justice's Anti- 
trust Division. To reduce duplicative discovery efforts, the recom- 
mendations expressly permit the Antitrust Division to obtain dis- 
covery materials from parties to antitrust actions commenced before 

(5) 



6 

the suit at issue. The recommendations also seek to discourage dilatory 
litigation tactics by strengthening the financial disincentives for such 
behavior. The recommendations would also allow courts to give col- 
lateral estoppel effect to prior Government judgments in subsequent 
private suits. In addition, the recommendations would expand the 
Government's jurisdiction under section 7 of the Clayton Act, the 
antimerger provision, to the full reach of the Commerce clause. With 
respect to the FTC, the recommendations propose several changes 
designed to streamline the agency's subpena authority. 

Attempts to Monopolize 

The National Commission for the Review of Antitrust Laws and 
Procedures also studies the case law relating to the attempt to monop- 
olize offense under section 2 of the Sherman Act. Although the com- 
mission was divided, a majority concluded that the law of attempt 
is in disarray and, in at least two respects, overly restrictive. Specif- 
ically, the Commission recommended statutory language (1) aban- 
doning the "dangerous probability of monopoly" test in favor of a 
more flexible "dangerous risk of monopoly" test, and (2) providing 
that pricing above marginal or average variable cost is not conclusive 
evidence of the absence of anticompetitive intent or conduct. The 
committee plans to review the existing attempt to monopolize stand- 
ards in light of the Commission's recommendations for statutory 
change. 

Capper- Volstead Act 

This act allows producers to "act together in association ... in 
collectively processing, preparing for market, handling, and market- 
ing agricultural products." The act also permits associations to main- 
tain common marketing agencies, and allows associations and their 
members to make the necessary contracts and agreements for carrying 
out these purposes. The act was adopted in 1922 out of concern that 
farmers would not otherwise be able to counter the market power of 
manufacturing companies. 

Recently, the National Commission for the Review of Antitrust 
Laws and Procedures recommended that cooperative associations be 
treated like other corporate entities with respect to mergers. That is, 
mergers, marketing agencies in common, and similar agreements 
among cooperatives should be allowed, the Commission said, only if 
such practices do not substantially lessen competition. The Commis- 
sion further recommended more precise definitions of the "undue en- 
hancement" provision in section 2 of Capper- Volstead, and considera- 
tion of removing from the Secretary of Agriculture responsibility for 
enforcement of Capper- Vol stead. The committee intends to study the 
Commission's recommendations in the coming session. 

Competitive Conditions in the Refining Industry 

Relationships among the major petroleum refiners have been de- 
scribed in the majority report of the Judiciary Committee on the Pe- 



troleum Industry Competition Act of 1976 (Senate Rept. 94-1005). 
The committee continues to believe that independent refinery compe- 
tition is essential to ensure that the public interest is protected. It 
proposes to continue its examination of the refining industry to deter- 
mine whether new legislation is required by current circumstances 
in order to ensure competition. 

Concentration and Inflation 

The current rate of inflation is obviously a matter of grave concern. 
Inflation undermines hard-earned incomes and threatens the health 
and well-being of our Nation's poor and elderly. To the extent that 
higher prices result from anticompetitive forces at work in the market- 
place, they are a matter of direct concern to this committee. 

The rapid rise in prices which has continued unabated over the last 
decade may well have been fueled by high levels of concentration and 
anticompetitive practices in important industries in the United States. 
The unparalleled inflation of prices for basic necessities has taken its 
greatest toll on those who can afford it least — the poor, the elderly and 
the infirm. In a series of hearings, the first of which will focus on the 
food industry, the committee plans to explore the relationship between 
inflation, industrial concentration and anticompetitive practices. 

aIergers 

The committee intends to devote a substantial portion of its time and 
resources to an intensive investigation of large mergers. In 1975, there 
were 24 mergers or acquisitions with purchase price of $100 million or 
more. By 1977 the number of such mergers had increased to 41. and in 
1978 there were 80 such mergers. While current legislation governs 
horizontal or vertical mergers within a given industry, it has failed to 
reach conglomerate mergers . . . those between companies in ostensi- 
bly unrelated industries. The committee will study whether new legisla- 
tion is needed to prevent the potential social, economic, and political 
consequences of such mergers. 

Defense Procurement 

Government procurement practices can have serious anticompeti- 
tive effects. For example, by allowing sole source contracts in situa- 
tions in which items might readily be purchased on the open market, 
the Government helps distort competitive market forces and wastes 
tax-dollars in the process. 

The Defense Department appears to be a serious offender in this 
regard. In 1967, then-Secretary of Defense Robert McXamara esti- 
mated that the failure of the Pentagon to take advantage of compe- 
tition contributed to the waste of as much as 25 cents on each procure- 
ment dollar. Little has happened in the past 11 years to change that 
situation. Consistently, year after year, the Department spends fewer 
than 10 percent of its procurement dollars through contracts let by 
competitive sealed bidding. And just as consistently, the Pentagon 
takes the sole source route for over half of its procurement spending. 
In fiscal year 1976, the most recent year for which figures are avail- 



8 

able, that meant 117,000 sole source Department of Defense contracts, 
of which 31,000 were for sums greater than $100,000. It also meant 
that the Defense Department sole sourced $23 billion in procurement 
contracts, over 57 percent of its $40 billion procurement budget for 
that fiscal year. 

Defense officials argue that sole source contracts are necessary in ac- 
quiring sophisticated items. However, it has been argued by others that 
the Department routinely lets sole source contracts for items that 
could be purchased competitively. The Navy's procurement last year 
of the CTX, an off-the-shelf light cargo aircraft, is said to be one 
example. 

The committee plans to hold hearings on this issue during the coming 
session to ascertain the extent of the problem and determine whether 
any legislative changes in the procurement process are called for. 

Health Insurance and Physician Compensation 

The startling escalation of health care costs in the last decade is of 
major concern to the committee. In connection with this problem, it is 
argued that the current structure of health insurance systems, pricing 
practices within the medical community, and the impact of insurance 
on physician compensation have contributed to the disturbing rise in 
the cost of health care. The House Interstate and Foreign Commerce 
Subcommittee on Oversight and Investigations recently released a re- 
port documenting, for example, domination of Blue Cross-Blue Shield 
plans by doctors, a matter of serious concern to this committee. 

The committee will study the anticompetitive implications surround- 
ing the provision of health insurance and health care. Hearings on this 
subject will be a top priority for the coming session. 

Consumer Antitrust Actions 

The Supreme Court's opinion in Illinois Brick Co. v. Illinois, 431 
U.S. 720 (1977), bars indirect purchasers from bringing civil actions 
for damage against antitrust violators. Only direct purchasers of price- 
(ixed goods are permitted to sue, and the} 7 may do so even if they have 
passed on all of the illegal overcharges to purchasers further down the 
chain. This means that since consumers (including Federal, State, 
and local governments) are usually indirect purchasers of the prod- 
ucts they use, they are effectively barred from suing for antitrust vio- 
lations that injure them. 

This decision runs counter to long-established judicial precedent and 
defeats congressional intent in enacting the antitrust laws. It is funda- 
mentally unfair because it bars those truly injured by antitrust viola- 
tions from seeking relief in the courts while providing windfall profits 
to those who suffer no injury. Finally, the decision is troublesome be- 
cause suits by indirect purchasers are critical to an effective antitrust 
enforcement effort. 

Legislation has been introduced which would overrule the Supreme 
Court's holding in Illinois Brick and hearings on this bill have been 
scheduled. 



No-Conduct Monopoly 

The National Commission for the Review of Antitrust Laws and 
Procedures has recommended that the committee examine various pro- 
posals to eliminate the requirement that the Government prove that 
monopoly power was obtained or has been maintained by culpable 
conduct in equitable suits under section 2 of the Sherman Act. The pro- 
posals are aimed at persistent monopoly power which appears to exist 
in certain important markets in the TTnited States economy and which, 
many observers believe, is not justified by demonstrable efficiencies or 
economies of scale. The committee plans to hold heo rings dealing with 
the serious questions raised by such proposals. Specifically, the commit- 
tee will consider whether there exist? substantial and persistent monop- 
oly power unjustified by demonstrable efficiencies and whether any of 
the no-conduct proposals are likely to restore competition to such mar- 
kets without discouraging business growth or undermining public sup- 
port for the antitrust laws. If the committoe is satisfied that a no- 
conduct provision would be a meaningful addition to the Sherman Act* 
it will then conduct hearings on specific legislative proposals. 

Oil Compaxy Owx'ership of Alterx~attve Energy Sources 

The continuing trend of oil company ownership of alternative en- 
ergy sources raises serious antitrust concerns. The possibility is real 
that the development of various energy resources will be retarded, that 
energy prices will exceed competitive levels and that resources will not 
be efficiently allocated. The committee will continue to investigate oil 
company ownership of alternative energy resources. 

Oversight of Departmext of Justice Axtitrust Policy 

The committee, in line with its responsibility to legislate and oversee 
the ''protection of trade and commerce against unlawful restraints and 
monopolies," plans to conduct at least two days of hearings for the pur- 
pose of examining the Department of Justice's Antitrust Division. Spe- 
cifically, the committee intends to examine possible impediments to 
effective enforcement and to focus on possible solutions, whether they 
involve legislation in the form of increased appropriations or changes 
in substantive law. organizational changes in the enforcement agencies 
or changes in judicial machinery. 

Because these hearings will be held in conjunction with the Depart- 
ment of Justice authorization bill, they must be held prior to May 15. 
In addition to the matters mentioned above, the hearings will provide 
a forum through which the committee can evaluate the first 2 years 
of the administration's new antitrust policies. 

Repeal of the aIcCarrax'-Fergusox" Ax'titrust Exextptiox' and 
Provision's to Advance Equitable Pricing 

Since 1945. the insurance industry has enjoyed virtually complete 
immunity from the Sherman. Clayton, and Federal Trade Commis- 
sion Acts. Under its exemption, the industry has relied extensively on 
joint price-setting through industrywide rating bureaus. Testimony at 

40-315 — 79 3 



10 

hearings of the Subcommittee on Citizens and Shareholders Eights 
and Remedies in January 1978 suggested that discriminatory and 
inequitable rating and underwriting practices have been a severe prob- 
lem under the existing system of regulation. The recommendation of 
the National Commission for the Review of Antirust Laws and Pro- 
cedures is to repeal the current antitrust exemption, replacing it with 
narrowly drawn, limited immunities for essential activities. Legisla- 
tion combining the McCarran-Ferguson repeal with provisions to ad- 
vance equity and availability is being prepared, and early hearings on 
this legislation are planned. 

Retail Petroleum Operations by Oil Companies 

The operation of retail gasoline service stations traditionally has 
been an area of economic activity occupied by independent business- 
men and women. The great majority of these retailers (84 percent of 
stations in July 1978) are branded dealers for petroleum refining 
companies of various sizes; more than 70 percent hold dealerships for 
major oil company brands. 

One of the striking developments since the OPEC oil embargo of 
1973, however, has been a serious trend towards direct control of 
retail operations by refining companies. As independent branded 
dealers leases expire, more and more are being replaced by contracts 
hiring refining company employees as retail managers. Further, ac- 
cording to testimony presented to the committee by the National Con- 
gress of Petroleum Retailers, it is the attractive retail outlets which 
appear to be preferred targets for such takeovers. 

Several States have enacted legislation to prevent or limit refiner 
operation of retail stations, and a number of others are considering 
such legislation. The committee believes that there is a clear antitrust 
concern about the growth of refilling company operation of retail fa- 
cilities, heretofore the most competitive sector of the petroleum indus- 
try. The committee will examine this development in detail with a view 
toward holding hearings during the coming Congress. 

Vertical Integration in the Petroleum Industry 

During the 94th Congress, the committee considered and reported S. 
2387, relating to the question of vertical integration in the petroleum 
industry. Events since 1976 have not ameliorated the concerns which 
many observers believe exist in this area. Accordingly, the committee 
plans to continue its study of vertical integration, with particular 
focus on two areas: (1) the control of pipeline transportation by 
integrated oil companies; and ('2) the apparent trend among major 
oil companies to assume direct operation of their own retail outlets, 
displacing their lessee dealers who, as independent businessmen, have 
been a competitive force in the market. 

Webb- Pom ere ne Act 

The Webb-Pom erene Act of 1918 provides antitrust immunity for 
exports. Its purpose is to promote U.S. exports by equalizing the 
American firms' competitive status vis-a-vis foreign cartels. The im- 
munity applies only where there is no resulting restraint on any domes- 



11 

tic competitor of the association. The FTC has oversight responsibili- 
ties for Webb-Pomerene Associations, a function exercised sparingly 
over the past 60 years. 

Recently, the -National Commission for the Review of Antitrust 
Laws and Procedures recommended further study of the Webb-Pom- 
erene exemption. The language of the report is highly critical of the 
exemption in light of (1) anticompetitive spillover effects in domestic 
commerce; (2) the possibility of accomplishing the purposes behind 
Webb-Pomerene without providing antitrust immunity to the associa- 
tions; and (3) the adverse impact on pro-competitive diplomatic 
initiatives. 

The committee plans to investigate the questions raised by the Com- 
mission with respect to Webb-Pomerene and evaluate the usefulness of 
this measure to the economy as a whole in light of its potential anti- 
competitive effects. 

Motiox PrcTrm: Distribution Practices 

Historically, the motion picture industry has not been characterized 
by vigorous competition. Prior to World War II only five companies 
dominated the industry. Exclusive territorial arrangements for dis- 
tribution and exhibition, prieefixing, and profit pooling were standard 
practices. In 1938 the Government charged these firms with conspir- 
ing to restrain trade and monopolizing the production, distribution 
and exhibition of movies. Ten years later five consent decrees were 
issued, known collectively as the Paramount decrees. These decrees 
required the divestiture of domestic theater chains and prohibited var- 
ious restrictive distribution practices, including fixing admission 
prices, pooling arrangements, and block booking. 

Despite these prohibitions and the independence of theater owners, 
competition has been generally restrained during the 30 years since 
the issuance of the Paramount decrees. Prices have continued to rise 
despite various downward pressures including theater overcapacity, 
the loss of moviegoers to television, and few new competitors have 
entered the industry. 

There is disagreement as to why this has occurred. Some observers 
suggest that market power cau be exercised as before because the 
majors still control the only nonsubstitutable element in the industry — 
the movie itself. Others believe that the problem lies in the continu- 
ing link between the production and distribution of movies. Inde- 
pendent theater owners charge that the Justice Department has failed 
to enforce the 1048 decrees, contending the discriminatory trade re- 
straints in the distribution of films continue. Whatever the case, the 
Paramount decrees may be ineffective remedies as much of the industry 
remains under virtual control of relatively few firms. 

In the 96th Congress, the committee will review this area, focusing 
on restrictive practices and structural factors that continue to obstruct 
competition and diversity in the production and distribution of motion 
pictures. Hearings will be held and legislative proposals will be 
considered. 

t Professional Sports 

The committee will consider antitrust issues raised by the current 
structure and operation of professional sports, particularly baseball, 
basketball, football, and hockey. 



12 

One of the committee's primary areas of focus will be the limited 
availability and high price of tickets to sporting events. The com- 
mittee will examine possibly anticompetitive league agreements which 
limit entry of new teams and the geographic mobility of teams al- 
ready within a league. In combination, these practices limit the num- 
ber of sports teams in a particular area, thus restricting the supply of 
tickets to the sports events in that area. The committee will investigate 
other possibly anticompetitive devices which limit ticket supply : the 
sale by some teams of tickets exclusively on a full-season basis, rather 
than game-by-game as well : and the refusal by some teams to sell reg- 
ular season tickets without also selling tickets to exhibition games. 

The committee will also consider professional baseball's antitrust 
exemption, which other sports, including football, basketball, hockey, 
boxing, golf, bowling, and softball do not enjoy; the 1961 Sports 
Broadcasting Act, which allows teams to pool their broadcasting rights, 
and thus sanctions a single seller of those television and radio rights, 
and practices which give a home team a greater share of gate receipts, 
thus enriching teams in major markets at the expense of those in 
smaller markets. 

The committee will hold hearings on these matters and possible legis- 
lation will be considered. 



CIVIL JUSTICE AXD COURT REFORM 

The Federal court law suit lias become a major vehicle for making 
public and private powerholders accountable to the community. 
Numerous disputes in the areas of civil rights, defense of the environ- 
ment, consumer protection, securities fraud, antitrust, safety, to name 
just a few, are being brought to the judicial forum. Rights previously 
ignored or unrecognized are being protected and advanced. 

Thi- large-scale resort to the courts has not gone unrestrained, how- 
ever. Burgeoning caseloads have impeded judicial decisionmaking. 

The Senate. President Carter, the Department of Justice, numerous 
scholars, lawyers and others have recognized the importance of main- 
taining free access to the courts for meritorious claims while relieving 
the courts of cases that do not properly belong there. 

Last session, the committee analyzed several areas in which it ap- 
peared that the court- excessively narrowed access to Federal courts 
and scrutinized various proposals to reduce the Federal court workload. 

Standing 

"Standing" relates to whether a plaintiff lias enough of an interest 
in a matter to warrant allowing him or her to sue. It is designed to 
prevent people who have no real interest in prosecuting a suit from 
maintaining an action. Recently the courts have been narrowing the 
class of persons entitled to sue through an increasingly restrictive defi- 
nition of •'standing." 

In the 95th Congress the committee held hearings on the "Citizens 
Right to Standing Act." a proposal to eliminate some of the judicially 
created hurdles which litigants now face under the doctrine of "stand- 
ing." The hearings revealed complex is-ues concerning precisely what 
kind of congressional action on standing would be required to ensure 
all citizens access to the court-. That measure along with possible revi- 
sions, will be the subject of further committee hearings to resolve those 
issues in light of the developing case law. 

Class Actioxs 

"Class Action" procedures arc designed to permit the aggregation 
of claims made by many litigants and which involve the same i>sues 
of law so that such claims can be more effectively resolved by the 
judicial system in a simile law suit. 

The 1966 amendments to the Federal Rules of Civil Procedure 
made substantial changes in Federal law governing class action liti- 
gation. However there are continuing problems with the management 
of cla.-s action suits in the Federal courts and widespread complaints 
that there are still too many barriers for groups of citizens with legiti- 
mate claims, who can only obtain meaningful access to the courts 
through the avenue of class action litigation. 



14 

In the 95th Congress the commit tee held hearings on Justice Depart- 
ment proposals which would substantially alter the Federal rules of 
class actions. The proposal would streamline the present complex re- 
quirements under ride 23 of the Federal Kules of Civil Procedures, and 
it would also create a new form of "the public class action'' to be 
brought by the Justice Department when individual damages are small, 
but widespread, and the primary public interest is in enforcement and 
deterrents rather than compensation. The committee held an explora- 
tory round of hearings on the proposal in November 1978 and the bill 
has been the subject of extensive review and revision as a result of the 
comments received at that time. 

In the 86th Congress the committee will take a comprehensive look 
at the Federal class action law and alternative proposals for improv- 
ing the citizens access to the court through new forms of class actions. 

Diversity 

Under "diversity" jurisdiction, claims arising under State law can 
be litigated in Federal courts if the parties to the case are residents of 
different states. Thug a lawsuit arising out of an automobile accident 
involving citizens of Maryland and Virginia can be brought in the 
Federal court, even though there is not a Federal legal issue or interest 
in the case. The doctrine of "diversity" arose in a climate of fear that 
State courts would be prejudiced against another State's citizens liti- 
gating before them. It is argued that such fears are no longer justified 
and that cases based solely on diversity do not belong in the Feder.nl 
courts. It is particularly important to recognize this uoav in light of 
the current strain on judicial dockets. Last session, the committee con- 
sidered legislation to alter or abolish it. The committee will again hold 
hearings on legislation to abolish diversity jurisdiction. 

Magistrates and Court Annexed Arbitration 

In the last Congress the committee worked on three proposals de- 
signed to reduce the present case load in the Federal courts, by pro- 
viding alternative methods of resolving disputes kept at the Federal 
level. 

In the 9&th Congress the Senate passed a measure to enlarge the 
powers and jurisdiction of Federal magistrates in order to relieve 
the burden on Federal judges and speed the delivery of justice, espe- 
cially in districts which currently have large case backlogs. 

The Senate also passed legislation to provide for "Court-annexed 
Arbitration." Under this bill, U.S. District Courts may adopt loeal 
rules authorizing the use of arbitration as a required first step in desig- 
nated categories of cases brought in the Federal court. The bill is de- 
signed to promote rapid, inexpensive resolution of disputes which do 
not require the full complex procedures of litigation in the Federal 
courts. While arbitration in such cases would be mandatory, it would 
not be binding. The parties could subsequently seek a full judicial trial 
if necessary. 

This spring the committee will review and process both of these 
measures for action, since they represent important opportunities to 
resolve disputes within the Federal system while preserving limited 
court resources for more complex legal issues which require judicial 
resolution. 



15 

Dispute Resolution Act 

The committee has also addressed the problem citizens have in ob- 
taining access to justice, particularly their need for alternative mecha- 
nisms to resolve minor disputes which are not particularly well suited 
for adversarial litigation. Last year the Senate passed the Dispute 
Resolution Act which would establish a national clearinghouse for 
information and technical assistance and which would provide Fed- 
eral financial assistance to State and local groups to experiment with 
such alternatives. Various pilot programs already underway in several 
States have shown great potential for resolving minor consumer dis- 
putes far more rapidly and inexpensively than traditional litigation, 
while also promoting reconciliation of the parties and easing the strain 
on crowded State court docket s. 

The committee will be reviewing and processing this legislation for 
reconsideration of the full Senate. 

Federal Courts Improvement Act of 1979 

The "Federal Courts Improvement Act of 1979" will provide a basis 
for hearings on and committee consideration of numerous provisions 
designed to improve the administration and operation of the Federal 
courts. 

The issues range from the creation of judicial councils to judicial 
discipline to the appropriate scope of diversity jurisdiction to the 
creation of a new limited jurisdiction United States Court of Appeals 
for the Federal Circuit. Relatively extensive hearings will be neces- 
sary to provide a sound basis for the Committee to consider each 
feature of the bill on its merits. Hopefully, this process can be com- 
pleted early enough to obtain Senate consideration of the subject in 
the 1st Session of the 96th Congress. 

Future Role of the Federal Courts 

Beyond these specific areas of legislation, the committee will be hold- 
ing a series of hearings during the 96th Congress on the future role 
of the Federal courts. 

The upsurge in litigation will place substantial strains on the sys- 
tem, even with additional judges and some alternative mechanisms for 
resolving disputes brought to Federal court. A fresh look is needed 
at the fundamental question of what should be the priority business 
of the Federal Courts in the eighties and how should that business be 
conducted. 

What kinds of Federal questions — both constitutional and statu- 
tory—should have first call on the limited resources of the Federal 
system ? 

Can new procedures be designed for at least some of those matters 
which will remain in Federal court, which would permit their resolu- 
tion more efficiently ? 

How should one assess the impact on the courts of proposed leiri>- 
lation which would create new causes of action I 

These issues are both complex and interrelated. The committee will 
be seeking the views of jurists, practitioners, scholars, and other in- 
terested parties to determine what additional areas of legislation or 
oversight are appropriate areas for congressional action. 



16 

Finally, the committee will review the state of access to justice in 
state and local courts. With due regard for the concerns of federalism 
and the more limited role for the Federal Government in this sphere, 
the committee will hold hearings on what leadership and assistance 
Congress can provide in such areas as the delivery of legal services 
and the cost of litigation, and nonlegal forms of dispute resolution. 

Pension Eeform 

The committee will hold hearings on proposals to reform the public 
and private employee pension system in a manner that would make it 
more responsive to the needs of pension beneficiaries. Witnesses from 
the Labor and Treasury Departments will be asked to assess proposals 
made by union officials and other private interests at hearings held 
by the Subcommittee on Citizens and Shareholders Eights and Rem- 
edies on November 21 and 22, 1978. The proposals were aimed at two 
primary objectives: requiring a passthrough of proxy voting rights 
to beneficiaries or beneficiary committees, and establishing the bene- 
ficiaries rights to channel pension fund investments into activities that 
would serve beneficiary interests. 

Rate-of-Retuex Cost Disclosure In Life Insurance 

Concerns have been raised about the ability of consumers to com- 
pare the true value of permanent life insurance with other savings 
and investment vehicles as well as the true costs and benefits of one 
life policy as compared with another. Problems arise, it is argued, 
because of the complicated actuarial task of computing rates of return 
on the savings elements of whole life policies and because of the pro- 
liferation of numerous minor variations among policies. Senator Hart, 
as Chairman of the Antitrust and Monopoly Subcommittee, intro- 
duced S. 2065 in the 94th Congress to deal with life insurance cost 
disclosure problems, but the measure was never enacted into law. 
Many still argue that a "truth-in-life-insurance" bill is needed to help 
alleviate these problems and promote price competition in the life 
insurance industry. 

Hearings on the subject of life insurance cost disclosure will be a 
high priority of the committee this session. 

Shareholders Rights and Corporate Governance 

The committee is concerned about the plight of the individual share- 
holder in large corporations. The fact is, management has become 
increasingly independent and powerful, and individual shareholders 
have little or no ability to influence corporate policy and management, 
either directly at the stockholders meetings, or indirectly through his 
or her supposed representation on the Board of Directors. At the same 
time, we hear accounts of corporate misconduct and abuse that inevi- 
tably hurt both the shareholders and the community in general. 

Last session, the Subcommittee on Citizens and Shareholders Rights 
and Remedies investigated ways to strengthen corporate accountabil- 
ity, protect the rights of shareholders and restore public faith in 
corporate integrity. Hearings were held as well as extensive discus- 



17 

sion with the SEC and with many prominent members of the business 
community and the corporate bar. This session, the committee expects 
to continue investigations in this area. Additional hearings will be 
held and various legislative approaches to the problem will be con- 
sidered. The committee, seeks a constructive solution which would 
strike a balance between the rights of the corporation's owners — the 
shareholders — and the needs of management to conduct corporate 
business profitably. 



CRIMINAL JUSTICE 

The committee is responsible for monitoring and establishing policy 
regarding our system of criminal justice. These responsibilities include 
all matters related to criminal justice and oversight of those com- 
ponents of the Department of Justice related to criminal justice; any 
amendments to Title 18 of the United States Code ; all matters related 
to components of the Department of Justice which investigate or 
prosecute violations of Title 18 or provide financial assistance to state 
and local criminal justice agencies; and, matters relating to correc- 
tions and sentencing including components of the Department of 
the Bureau of Prisons, the Parole Commission, the Probation Service, 
the office of the United States Marshal and the Office of the Pardon 
Attorney. 

FBI Charter 

For more than a year, the Attorney General and the Director of 
the Federal Bureau of Investigation have strongly endorsed the idea 
of a statutory charter which would clearly define the investigative 
mandate of the Bureau in the United States. During the past five 
decades, the authority of the Bureau has gradually evolved and ex- 
panded without clear or cohesive legislative approbation. 

During the second session of the 95th Congress, a series of hearings 
was held by the committee which focused upon the need for a clear 
definition of the Bureau's responsibilities as well as for approved 
procedures for various investigations and investigative techniques. 
This need is all the more urgent as the Bureau begins devoting more 
of its resources to high priority investigations which utilize sophisti- 
cated techniques. 

The charter will be the first comprehensive legislative determina- 
tion of the jurisdiction and authority of the Bureau. It will attempt 
to balance the legitimate law enforcement needs of the primary Fed- 
eral investigative agency with the constitutionally protected rights of 
the American people. 

Victims of Crime 

For the past several Congresses, the Senate has passed bills which 
would subsidize the cost of State programs which compensate innocent 
victims of crime for unreimbursed medical expenses and lost earnings 
resulting from a criminal act against them. Nearly half the States in 
the country have such programs in existence which compensate vic- 
tims of both State and Federal crimes. 

To date, congressional efforts to deal with the problem of crime in 
the United States have been focused upon improving various levels of 
the criminal justice system as well as concentrating on better care and 
increased rehabilitative efforts of the criminal offender. Except for 
isolated experimental programs, the victim of the crime has been all 
but forgotten. As a consequence, the victim has had to bear the eco- 
nomic burden, resulting from medical expenses and lost earning in 

(18) 



19 

addition to the physical suffering and property loss. Currently, 25 per- 
cent of those injured during a crime absorb 91 percent or $20,523^96 
of unreimbursed medical expenses. 

Under the proposed legislation. States would be encouraged to estab- 
lish victim compensation programs to aid these innocent citizens, and 
the Federal Government, as part of a comprehensive national criminal 
justice policy, would both entourage and assist States which have 
these programs. 

Surreptitious Entries 

Title III of the Omnibus Crime Control and Safe Streets Act of 
1968 authorizes a warrant procedure for the use of electronic devices 
to intercept conversations during the course of a criminal investiga- 
tion. These intercept devices, generally referred to as wiretaps or 
bugs, require installation after the court order is signed. Wiretaps 
can be installed without enterting the targeted premises, but bugs re- 
quire that the premises be entered in order that the bugs may be 
installed. 

A number of U.S. Courts of Appeals have reached conflicting results 
when deciding whether a separate entry provision or order is required 
before these bugs can be installed. There i< also some question regard- 
ing whether a court has authority to enter such an order, absent a 
statutory authorization. The Supreme Court i- currently considering 
this question. 

The committee will examine this issu'e, and determine whether, con- 
sistent with protected privacy interests, Title 111 should be amended 
to provide for entry orders and define the specificity they should 
reasonably contain. 

Exclusionary Rule 

During the course of a criminal prosecution, the court must decide 
whether evidence, which the Government intends to introduce at trial, 
was seized in conformity with Fourth Amendment requirements. If 
the court determines that these requirements were not satisfied, the 
evidence is excluded from trial and may result in the dismissal of 
the criminal prosecution. 

Some observers have expressed di>satisf action with the pro- 
cedure since the evidence is excluded regardless of how insignificant 
the Fourth Amendment violation or how important the evidence. 
Critics have suggested that the exclusionary remedy is sometimes dis- 
proportionate to the invasion. The committee plans to evaluate this rule 
to determine whether a different, yet an effective remedy for Fourrh 
Amendment violations can be fashioned. 

Grand Jury Reform 

During the past few years, the committee has held a number of 
hearings to determine whether the grand jury system, as it now oper- 
ates, should be reformed. This effort has been addressed to correct 
reported abuses of the system as well as to make the system more inde- 
pendent and effective. 

The grand jury system will continue to be studied with a view to 
eliminating the potential for invasion of protected rights of citizens 
while at the same time insuring that the legitimate investigative func- 
tions of the grand jury are not unduly restricted. 



20 

The Department of Justice has been reviewing the grand jury sys- 
tem to determine what changes can and should be made in the present 
process. These recommendations will be analyzed by the committee as 
part of its own study. 

Department of Justice Oversight 

Consistent with the committee's intention of holding "in-depth" 
oversight hearings on a limited number of agencies or divisions of 
the Department, it is anticipated that there will be intensive oversight 
of the Criminal Division during the first session of the Congress. 

The committee also plans intensive star! work in preparation for in- 
depth oversight hearings on the Drug Enforcement Administration 
(DEA) and the Office of Juvenile Justice and Delinquency Preven- 
tion during the second session. In that connection, the committee feels 
it is essential to begin, during this session, preliminary oversight hear- 
ings on the desirability of developing a legislative charter for the 
DEA. A complete examination of the Federal effort at drug enforce- 
ments is as well, long overdue. 

The committee is committed to continuing efforts to improve the 
quality of juvenile justice and the prevention and control of juvenile 
delinquency. Preliminary hearings designed to examine the focus of 
our efforts in this area and the "return on investment" are planned. 

Computer Fraud axd White Collar Crime 

Last year the committee conducted 2 days of hearings on S. 1766, 
Senator Bibicoff's computer fraud bill. This legislation has been the 
subject of extensive work by the staff and Senator Ribicoff has reintro- 
duced the bill with a request that it be acted on promptly. 

; ' Gra ym ail" Legislation 

Increased public awareness of the ability of defendants in national 
security cases to avoid prosecution or penalty by threatening to dis- 
close classified material as part of their defense has created pressure on 
Congress to deal with the problem. In conjunction with the Department 
of Justice and the Intelligence Committee, the committee plans to con- 
duct limited hearings on "graymail" legislation to be introduced by 
Senator Biden. 

International Terrorism 

Concern over the Government's ability to respond to acts of interna- 
tional terrorism and an examination of the "machinery" in place to 
deal with such actions will be the focus of hearings to be held during 
the first session. The committee will consider mechanisms to deal 
with terrorism under current statutes as well as the question of whether 
specific legislation aimed at the problem is needed. 

Children's Issues 

The committee plans to continue many of the initiatives previously 
undertaken in the area of juvenile delinquency. Of primary concern 
will be legislation to strengthen the deterrent effect of our drug laws. 
The committee also anticipates increased attention by Congress to the 



21 

issue of children's rights in this the International Year of the Child 
and plans to aggressively pursue legislative initiatives in this area as 
they relate to the jurisdiction of the committee. 

Prisox Reform and Modernization 

The committee plans to continue work in the area of prison reform, 
particularly with regard to the question of providing financial assist- 
ance to State and local governments for construction of new and reno- 
vation of existing correctional institutions. The committee also will be 
dealing with the anticipated impact on operation of correctional pro- 
grams that will result from changes in prosecution and dispositional 
policies assuming passage of Criminal Code reform. 

Title 18 Amendments 

The committee expects to augment the work on Criminal Code re- 
form. It is expected that some 80 to 100 pieces of legislation having 
to do with amending Title 18 will be the focus of committee concern 
during the first session. 

Auto Theft 

The administration plans to submit legislation dealing with motor 
vehicle theft. Hearings planned to determine the scope of legislation 
will address security for the vehicle and its parts, sentencing of offend- 
ers, standards for motor vehicle titles and salvage vehicle procedures. 

The Criminal Code Reform Act of 1979 

A new Federal Criminal Code Reform Act. using S. 1437 as it passed 
the Senate last Congress as the basic vehicle, will be introduced early in 
the 96th Congress. This measure represents a comprehensive revision 
and reform of current Federal Criminal Laws. 

It is anticipated that hearings on the bill will be held to supplement 
the 16 volumes of hearings conducted in the prior four Congresses. In 
addition to the massive work to update the bill and the 1,100 page 
committee report to reflect, for example, separate legislation en- 
acted into law in the 95th Congress and new court decisions, the sug- 
gestions and comments from Senators, the Federal agencies, and di- 
verse interest groups will be considered. Processing the Criminal Code 
Reform Act will be one of the major projects of the committee in the 
1st Session of the 96th Congress. 

The Justice System Improvement Act of 1979 

The Justice System Improvement Act of 1979 is an omnibus measure 
to revamp the Federal Law Enforcement Assistance program in the 
light of over 10 years experience under Title I of the Omnibus Crime 
Control and Safe Streets Act of 1968 and to reauthorize the program 
for 5 years. 

Four days of hearings were held in the 2d session of the 95th Con- 
gress on an identical bill as a prelude to considering the measure in 
the committee this Congress on an accelerated schedule within the 
deadline for enactment of September 30, 1979. 



IMMIGRATION AND REFUGEES 

Under the rules of the Senate, the committee has responsibility for 
overall immigration and refugee legislation and policy. In fulfilling 
this responsibility, the committee will continue its oversight functions, 
as in the past, as well as consider important new legislative and orga- 
nizational proposals in the immigration and refugee field. 

Select Commission ox Immigration and Refugee Policy 

A major opportunity exists in the 96th Congress to begin the long 
overdue process of reviewing and reforming our Nation's immigra- 
tion laws and practices. "With the creation by Congress of a Select 
Commission on Immigration and Refugee Policy (Pub. L. 95 — 112) , 
the Congress mandated that a 2-year study be undertaken of our 
Nation's immigration and nationality law. In securing the adoption 
by the Senate last October of this bill establishing the Commission, 
Chairman Kennedy stated the objective as follows : 

. . . The time is past due for us to approach the revision of our 
antiquated immigration law like we have approached the revision 
of the criminal code — to dump the old law, and start anew. To do 
this, we need to have an objective and thorough study of current 
immigration law and practice . . . which must involve a broad 
spectrum of opinion and groups concerned with immigration 
reform. I would hope the Select Commission could begin function- 
ing by the beginning of next year. 
The Select Commission will be composed of four members of the 
Senate Judiciary Committee, four members of the House Judiciary 
Committee, four Cabinet officers — the Secretary of State, the Attorney 
General, the Secretary of Labor, and the Secretary of Health, Educa- 
tion, and Welfare — and four members to be appointed b} 7 the President, 
including the chairman. The statute sets forth the Select Commission's 
responsibility "to study and evaluate . . . existing laws, policies, and 
procedures governing the admission of immigrants and refugees to the 
United States and to make such administrative and legislative recom- 
mendations to the President and to the Congress as are appropriate." 
Specifically, the statute instructs the Commission to: "(1) conduct 
a study and analysis of the effect of the provisions of the Immigration 
and Nationality Act (and administrative interpretations thereof) on 

(a) social, economic, and political conditions in the United States; 

(b) demographic trends, (c) present and projected unemployment in 
the United States, and (d) the conduct of foreign policy: (2) conduct 
a study and analysis of whether and to what extent the Immigration 
and Nationality Act should apply to the Commonwealth of Puerto 
Rico, the Virgin Islands, Guam, American Samoa, the Northern 
Mariana Islands, and the other territories and possessions of the 

(22) 



23 

United States; (3) review, and make recommendations with respect 
to the numerical limitations (and exemptions therefrom) of the Im- 
migration and Nationality Act on the admission of permanent resi- 
dent aliens; (4) assess the social, economic, political, and demographic 
impact of previous refugee programs and review the criteria for, and 
numerical limitations on, the admission of refugees to the United 
States; (5) conduct a comprehensive review of the provisions of the 
Immigration and Nationality Act and make legislative recommenda- 
tions to simplify and clarify such provisions. . . .' ? 

One of the primary concerns of the committee in the 96th Congress 
will be to assure the effective functioning and successful work of this 
Select Commission. The resources of the committee, and the time of 
its members and staff, will be made available for this purpose. 

Pending this overall reform of the Immigration and Nationality 
Act of 195*2, it is the firm intention of the committee to review and 
consider other specific immigration bills that will contribute to the 
longer-term effort of reforming the law. 

Refugee Reform Legislation 

Building upon proposals introduced by Chairman Kennedy in 
previous sessions, the committee will work closely with the executive 
branch, with representatives of the voluntary agencies, and with others, 
in developing proposals to reform the inadequate refugee provisions 
of existing law. There i> wide agreement over the need to establish a 
U.S. National Refugee Policy in law. which will treat all refugees 
equally; which will reflect our obligations as a signatory to the United 
Nations Refugee Convention and Protocol: relating to the status of 
refugees; which will enable us to fulfill our traditional humanitarian 
concern for refugees overseas, and which will rationalize our Nation's 
policy towards the admission and assistance of refugees resettling in 
the United States. 

UXDOCUMEXTED ALIENS 

Proposals have been repeatedly introduced in Congress in recent 
years to address the issue of undocumented aliens in the United States. 
This issue will clearly be of urgent concern to the committee in the 
96th Congress. However, all agree that this question is a large and 
complicated one. about which there are more questions than answers, 
and for which there are as many proposals as differing views. 

The committee intends to address this issue forthrightly, and to con- 
sider all legislative proposals offered, and review all aspects of the 
issue, in an effort to deal with it in a responsible and humane 
fashion which reflects both the immigrant and humanitarian traditions 
of the American people as well as the economic and foreign policy 
needs of the United States. 

Nationality Provisions of Law 

The committee will again review a number of proposals to make 
more humane and just our laws governing the retention and conferral 
of American citizenship on American children born overseas. 



24 

Other Legislative Proposals 

The committee anticipates considering a number of other major 
legislative proposals including repealing antiquated and unneces- 
sary reporting requirements in the Immigration and Nationality Act 
that annual ly waste over $100,000 in paperwork, review of certain 
deportation provisions of law, Mexican-Canadian immigration quotas, 
and perhaps the current use and legal requirements surrounding the 
H-2 visa. 

Private Immigration Bills 

Each year the committee is required to consider and process a large 
number of private immigration bills and ad justment-of -status cases, 
as well as a large number of cases referred to the committee by the 
Attorney General in which he has exercised his discretionary authority 
to waive certain provisions of the Immigration and Nationality Act, 
or his special authority to parole into the United States or grant con- 
ditional entries to certain refugees. 

The committee will likely process and consider some 400 to 500 indi- 
vidual private bills and claims referred to it each session. 

Oversight 

A major responsibility of the committee is to oversee the implemen- 
tation of the Immigration and Nationality Act of 1952. as amended. 
Oversight responsibilities of the Immigration and Naturalization 
Service have consumed — and will continue to involve — extensive time 
and attention of the committee. In monitoring the implementa- 
tion of United States law, and the complex administrative practices 
and procedures governing American policy in the immigration and 
naturalization field, in international migration, and related humani- 
tarian affairs, the committee will maintain very close working rela- 
tionships, on a daily basis, with the Commissioner of the Immigration 
and Naturalization Service, the Department of State, the Agency for 
International Development, and a range of international organiza- 
tions and private voluntary agencies. 

In addition to general immigration oversight, the committee will 
continue to give careful attention to responsibilities it has in interna- 
tional migration and refugee problems, as once embodied in its former 
Subcommittee on "Refugees (as established by Congress within the com- 
mittee in 1952). These responsibilities involve oversight of programs 
costing hundreds of millions of dollars, ranging from oversight of the 
Indochinese Refugee Assistance Program, the Lebanese parole and 
assistance program, the Cuban prisoner release program, the Latin 
American parole program, and other worldwide refugee as<=i c fance 
programs, such as in Southern Africa, Cvprus. Bangladesh, etc. These 
crucial assistance programs reflect the deep humanitarian concerns of 
many Americans and will remain a priority matter before the commit- 
tee in the 96th Congress. 



CONSTITUTIONAL EIGHTS 

Broad constitutional questions and constitutional rights are among 
the most critical issues faced by present and future generations of 
Americans. As citizens have become more conscious of the importance 
of their constitutional liberties, this increased public concern has been 
reflected in a steadily increasing volume of work in the committee. The 
committee has a primary role in protecting the rights, privilege and 
freedoms guaranteed under the Constitution. During the coming ses- 
sion, the committee will examine the following matters : 

Proposed Constitutional Amendments 

direct popular election of the president and the vice president 

The committee will again consider the proposed constitutional 
amendment to abolish the electoral college and "unit vote" system, and 
substitute direct popular election of the President and Vice President. 
The proposed amendment further provides that in the event that no 
candidate receives 40 percent of the popular vote, the President and 
Vice President will be elected in a run-off election between the two 
pairs of candidates receiving the highest number of votes. 

Various plans to reform the electoral system have been the subject 
of extensive study and debate in the committee since 1966. In the decade 
that the proposal for the direct election of the President has been under 
consideration, arguments for and against the amendment have been 
carefully examined in committee. The questions raised by the proposed 
amendment have been reviewed and commented upon by the broadest 
range of individuals during the course of the many weeks of hearings 
and many days of floor debate on the measure. 

The proposed amendment has been introduced again in the 96th 
Congress and early action is planned. As is the case with all proposed 
constitutional amendments, extensive Senate debate is anticipated. 

CONSTITUTIONAL LIMITS ON THE FEDERAL BUDGET 

Public interest in constitutional means of balancing the budget con- 
tinues to increase as evidenced by the growing number of resolutions 
from State legislatures calling either for congressional action or the 
convening of a constitutional convention to develop an amendment for 
a balanced Federal budget, numerous ref erendums on State ballots, and 
the increase in the number of legislative proposals introduced on this 
subject in the 96th Congress. 

The committee will focus on two aspects of the balanced budget pro- 
posals: (1) the type of fiscal controls to be imposed; and (2) whether 
a constitutional amendment is the appropriate means of imposing 
limitations on Federal spending; and if so, should it be by congres- 
sional initiative or convention approach. 

(25) 



26 

The committee will devote immediate and thorough attention to the 
economic and budgetary aspects of the various proposals to limit Fed- 
eral spending. Early hearings are anticipated. Subsequently, the com- 
mittee will focus on the alternative amendment procedures in Article 
V of the Constitution. 

CONSTITUTIONAL CONVENTION PROCEDURES 

Article V of the Constitution provides two methods for initiating 
amendments to the Constitution : (1) Congress can propose an amend- 
ment by a two-thirds vote of both Houses, or (2) two-thirds or more 
of the State legislatures can petition Congress to call a convention to 
consider proposed amendments. Any amendment proposed by either 
Congress or a convention would, of course, require ratification by the 
legislatures or conventions called in three-fourths of the States. State 
legislatures have petitioned Congress to call a convention on a multi- 
plicity of issues, from having a World Federal Government to requir- 
ing prayers in school, but at no time has the Constitutional Conven- 
tion route been utilized for enacting amendments, nor do procedures 
exist for utilizing such an approach should Congress receive the requi- 
site number of petitions. 

In the 92d Congress, the Senate passed "The Federal Constitutional 
Convention Procedures Act," but that measure failed in the House. 
Since that time procedures for such a convention have been a matter 
drawing considerable attention in the legal community. With the num- 
ber of petitions calling for a Constitutional Convention steadily in- 
creasing, the committee will examine Congress' power to establish pro- 
cedures to make such a contingency as smooth and as fair as possible. 
The subcommittee will consider, among other items, the following : 

(1) Can one Congress bind a future Congress on procedures for the 
Article V alternative of a Constitutional Convention ? 

(2) What constitutes a valid call by a State legislature for a Con- 
stitutional Convention ? 

(3) How can Congress best maintain its records of the number of 
valid petitions? 

(4) Can Congress restrict the subject matter of such a Convention? 

(5) Can Congress establish the procedures for selecting delegates 
to the Convention ? 

(6) Can Congress establish the procedures of such a Convention? 

(7) What role will the courts play in the Convention process? 

ABORTION AND FREEDOM OF CHOICE 

Under Roe v. Wade, 410 U.S. 113 (1973) and Doe v.BoJton, 410 U.S. 
1970 (1973), the Supreme Court set forth constitutional rights and 
restraints regarding abortion. The decisions generated enormous con- 
troversy. In 1974 and 1975 16 days of hearings were conducted on 
proposed constitutional amendments to restrict or prohibit abortions. 
During the 95th Congress, four proposals addressing pregnancy termi- 
nation and the rights of the unborn were referred to the committee. 
As is the case with all proposed constitutional amendments, the com- 
mittee responded to numerous inquiries from citizens and legislators, 
both at the State and Federal level. A continuation of these responsi- 
bilities during the 96th Congress is anticipated. 



27 
Eights or Privacy 

LIMITATIONS ON THE USE OF POLYGRAPHS AND OTHER SUPPOSED LIE 

DETECTION DEVICES 

The polygraph or "lie detector" has been promoted as an objective, 
scientific method for separating truth from falsehood. In the 50 years 
that the polygraph machine has been in use, serious questions persist as 
to its accuracy and reliability, and the threat it poses to constitutional 
lights. Yet, the technique has gained widespread acceptance for pur- 
poses of employment and pre-employment screening. 

In 1974, the committee published a staff report entitled "Privacy, 
Polygraphs and Employment." That report examined the use of the 
lie detector as a general surveillance device, its effect on individual 
rights and privacy, and recommended that lie detection be banned in 
the employment setting. A similar recommendation was made in the 
final report of the Privacy Protection Study Commission in 1977. 

On the basis of the materials collected in the course of these in- 
quiries, polygraph legislation under consideration in the committee 
since 1967, was refined and reintroduced. The committee anticipates 
early action on the current proposal to prevent the indiscriminate use 
of the polygraph or similar tests in both the Federal and private sectors 
when used for pre-employment screening purposes or as periodic checks 
on employees. 

POLICE SEARCHES AGAINST NONSUSPECTS 

The question of whether a search warrant or a subpena is required 
for law enforcement officials to conduct searches of a person's business 
or home for evidence of a crime when that person is not suspected of 
involvement in the crime, was decided by the Supreme Court in 
Zurcher v. Stanford Daily. There the Court upheld the legality of an 
unannounced search of a newspaper office, ruling that the search was 
not unreasonable under Fourth Amendment standards and found no 
constitutional basis for a subpena, first requirement for third party 
searches. The committee immediately began consideration of various 
legislative responses to the Court's decision. The proposals ranged 
from protecting all third parties from unannounced searches to pro- 
tecting only the press. 

On December 13, 1978, the President announced that in view of the 
threat posed to the press by the Stanford Daily decision, the adminis- 
tration would submit legislation early in the 96th Congress to prohibit 
searches for the "work product" of persons preparing materials for 
dissemination to the public. 

The committee staff has been in close contact with the special task 
force under Attorney General Bell, which is drafting the administra- 
tion's bill. Hearings are anticipated early in the first session to con- 
sider the Justice Department's proposal to protect First Amendment 
materials, as well as other measures which would extend protection 
beyond the First Amendment to "confidential ' : relationships recog- 
nized at law, such as lawyer-client and doctor-patient relationships, 
and perhaps even to all third parties. The constitutional and practical 
problems posed by such legislation, its effect on law enforcement, and 
its coverage of state and local law enforcement officials are complex 
issues which will require considerable attention during this session. 



28 
First Amendment 
reporters shield 

Following the Supreme Court's decision in 1972 in Branzburg v. 
Hayes, 408 U.S. 665, the committee held several days of hearings on 
the issue of Federal Reporters' Shield legislation. At that time efforts 
to agree on an approach to shield laws failed, because of the widely 
differing opinions on this issue within both the media and legal com- 
munities. However, because of the ongoing study of this issue as well 
as renewed interest in shield legislation as a result of the incident 
involving New York Times reporter, Myron Farber, the committee 
intends to conduct hearings on this issue in the upcoming session. 

CAMERAS IN THE COURTROOM 

An important issue that the committee has followed for some time 
is the access of the electronic media to courts and judicial proceedings. 
Increasingly, State courts are relaxing their once almost total exclusion 
of cameras from courtrooms. Within guidelines issued by courts, elec- 
tronic media has been granted access to a variety of both appellate 
and trial court proceedings. The committee intends to continue to 
monitor these trends and their First and Sixth Amendment 
implications. 

The Judiciary 

judicial discipline 

The proposed Judicial Tenure Act, providing for removal of Fed- 
eral judges by other members of the judicial branch for conduct 
contrary to the "good behavior" clause of Art, III of the Constitution, 
was passed in the Senate on September 7, 1978. A similar measure 
died in the House. Serious constitutional questions were raised during 
consideration of the bill, which were registered in dissenting views in 
the Judiciary Committee report on July 24, 1978, as well as in debate 
on the Senate floor. New legislation offering alternative means of 
disciplining Federal judges will be introduced early in the 96th Con- 
gsess, along with the Judicial Tenure Act. Several days of hearings 
on these measures focusing on the pertinent constitutional issues are 
anticipated. 

EXTRAJUDICIAL ACTIVITIES 

The constitutional, legal and ethical questions of separation of pow- 
ers concerning the judicial branch and its involvement with issues of 
pending or proposed legislation is again before the committee. A staff 
study is underway with hearings or a report anticipated after comple- 
tion of the study. 

SPEEDY TRIAL ACT 

The 93d Congress enacted the Speedy Trial Act of 1974 (Pub. L. 
93-619). This law requires that Federal criminal defendants be tried 
within 60 days or have their charges dismissed. The 60-day require- 
ment would be phased in over a 5-year period in the trial of Federal 
criminal cases. The act also creates model pretrial service agencies. 



29 

and requires the establishment of comprehensive speedy trial plans and 
planning groups in each judicial district. Barring congressional action, 
the act's sanctions will go into effect in July 1979. It will be a major 
task of the committee to assess whether congressional action to delay 
the implementation date is necessary. 

The act assumes careful congressional review of its implementation, 
and the committee is presently engaged in this oversight. Judges^ pros- 
ecutors, and defense counsel with experience in the implementation of 
the act were surveyed on how the act was working. The committee 
also requested the General Accounting Office to undertake a complete 
audit of the various pre-trial service agencies established under Title II 
of the Speedy Trial Act. In addition, the GAO will report on the 
implementation of timeframes of the speedy trial provision set out in 
Title I of the act. This review is in progress and a draft of the report 
will be available shortly. Hearings scheduled for early spring, will 
focus on the GAO report as well as suggestions for amendments to the 
Speedy Trial Act recommended by the Administrative Office of the 
U.S. Courts, the Department of Justice, the National Association of 
State Attorneys General, and other organizations. 

Civil and Constitutional Rights 

rights of institutionalized persons 

The committee has under consideration a bill to empower the U.S. 
Attorney General to seek judicial enforcement of fundamental Federal 
rights of persons residing in State and local institutions. Specifically, 
the legislation would authorize the Attorney General to initiate or 
intervene in lawsuits to redress pervasive and systematic deprivations 
of institutionalized citizens constitutional and Federal statutory 
rights. 

During the 5 days of hearings held in June and July of 1977, over 40 
witnesses testified, including former institution residents, superintend- 
ents of mental and penal facilities, experts in mental health, mental 
retardation, penology, and public health, administrators of State de- 
partments of mental health and corrections, State attorneys general, 
judges, lawyers, officials from the Department of Justice, and repre- 
sentatives of groups interested in the care of the institutionalized. 

Some witnesses, notably the State Attorneys General, expressed con- 
cern that the bill as originally drafted contained insufficient safe- 
guards to protect State and local officials from precipitous action by 
the Justice Department. The bill was amended to ensure ample op- 
portunity for pre-suit notification and consultation between State and 
Federal officials. 

Further hearings in 1979 are planned. 

CIVIL RIGHTS ACTS OVERSIGHT 

One of the committee's primary responsibilities is to scrutinize the 
fundamental civil rights issues facing our Nation. These issues include 
voting rights, school desegregation, the Omnibus Civil Rights Acts 
of 1960, 1964 and 1968 and their enforcement effort, attorneys fees in 
civil rights cases, and the Civil Rights Commission (established by the 
Civil Rights Act of 1957). Substantial effort will necessarily be 



30 

devoted to continuation of the oversight and public information re- 
sponsibilities in this area, including specifically the effects of proposed 
Internal Revenue Service regulations concerning tax exemptions for 
private schools which may be suspected of racial discrimination. 

U.S. COMMISSION OX CIVIL RIGHTS 

The committee's oversight responsibility for the U.S. Commission 
on Civil Rights last Congress focused primarily on extending the 
life of the Commission for an additional time period. The U.S. Com- 
mission on Civil Rights is an independent, bipartisan, fact-finding 
agency created by the Congress in 1957 to investigate deprivations of 
voting rights, and equal protection of the laws, to appraise the laws 
and policies of the Federal government with respect to equal protec- 
tion of the laws, and to report its findings and recommendations to 
Congress and the President. The Commission's life has been extended 
five times since its first report in 1959, most recently in 1978, following 
4 days of hearings by the committee. 

Continued oversight of the Commission's activities during the 96th 
Congress, and an examination of its broadened mandate are scheduled. 

ATTORNEYS FEES 

The committee's continuing interest in citizen access to the courts 
has focused on the Federal court's awarding of attorneys fees to pre- 
vailing parties in cases involving constitutional rights. Two major 
pieces of legislation in this field have been considered by the committee : 
the Civil Rights Attorneys Fees Act of 1976, and S. 571, the HUD 
Attorneys Fees Act. As a result of this latest series of hearings, 
the committee is planning to consider major revisions (including the 
award of attorneys fees) to Title VIII of the Civil Rights Act of 1968. 
commonly known as the Fair Housing Act, and has scheduled 3 days 
of hearings this session. 

VOTING RIGHTS 

The enforcement of the 1965 Voting Rights Act, as extended and 
expanded by the 1975 amendments, continues to require much commit- 
tee effort and involvement. Presently under examination are adminis- 
trative questions which have arisen in connection with the voting sur- 
vey which the law requires the Bureau of the Census to conduct. Also 
under analysis are various proposals to repeal or amend the law, in- 
cluding amendments to alter the application of the act to "language 
minorities" and to repeal certain provisions of the act's coverage for- 
mula and minority language coverage section. 

The committee will also concentrate its oversight activities of the 
act on the Justice Department's enforcement of the law and the effect 
of that enforcement. 

RIGHTS OF CHILDREN 

For the past several years, the committee has undertaken a number 
of investigations to study wide-ranging juvenile related problems and 
to recommend legislation to help alleviate them. The committee will 
continue its efforts to ensure that the various departments and agen- 
cies of the Federal Government administering youth-oriented pro- 



31 

grams do so as fairly and effectively as possible and with as much 
cooperation and coordination as is feasible. The main focus of the 
committee's work will be in the following areas: (1) prevention and 
control of juvenile delinquency and crime; (2) the breakdown of the 
family structure and its relationship to juvenile delinquency; (3) 
school violence and vandalism; (4) interstate traffic in children: (5) 
young female delinquents, and (6) television violence and youth. 

Juvenile Justice Act 

The committee will conduct oversight hearings on the implementa- 
tion of various provisions of the Juvenile Justice and Delinquency 
Prevention Act at the Federal and State level, such as issues of de- 
institutionalization, separation of juveniles from adults in correctional 
facilities, monitoring of facilities, research efforts in so-called "prior- 
ity programs," "maintenance of effort" provisions, and organizational 
partitioning within the Law Enforcement Assistance Administration. 
The committee will also hold hearings and draft legislation to reau- 
thorize the law which expires in 1980. 

DISCROIINATION AGAINST THE ELDERLY 

The committee intends to hold hearings in late 1979 addressing dis- 
crimination directed against the elderly. These hearings will not only 
investigate areas where discrimination may exist, but also attempt to 
determine whether new legislation is needed in light of conclusions 
reached by the Civil Eights Commission and others. 



ADMINISTRATIVE PRACTICE AND PROCEDURE 

Enacted 30 years ago, the Administrative Procedure Act ( APA) was 
intended to set the minimal administrative procedural requirements for 
administrative agencies. It was expected that as agencies and adminis- 
trative law developed, the law would be changed. Yet the basic proce- 
dures of the APA have remained substantially unchanged for 30 years. 
The same is not true, however, about the impact on the American pub- 
lic of the regulatory process. It has grown dramatically, with rules and 
regulations promulgated through the rulemaking provisions of the 
APA affecting virtually every aspect of our lives. This has, in turn, 
lead to loud cries for "regulatory reform" from almost every quarter. 

In the 96th Congress, the committee will examine ways in which to 
reduce Government regulation without jeopardizing the interests it was 
designed to protect. The committee will focus on both structural or 
substantive changes of Federal agencies and changes in the APA to 
require agencies to proceed more fairly, openly and responsively in 
their duties. 

Reform of Administrative Procedure Act 

During the 96th Congress, the committee will hold hearings on a 
number of proposals to amend the Administrative Procedure Act to 
expedite and approve agency adjudications, rulemaking, ratemaking 
and licensings. Specifically these bills would require agencies to analyze 
the economic impact of a proposed rule and to consider various alterna- 
tives during the rulemaking process ; to set time schedules and dead- 
lines for their proceedings ; to clarify the power of agencies to limit 
oral, direct and cross examination; to authorize administrative law 
judges to grant summary judgment motions ; to give subpena power to 
all agencies to expedite discovery ; to grant agencies the power to en- 
force their subpenas through civil fines or court proceedings ; to author- 
ize all agencies to establish appeal boards, and to provide for some form 
of congressional oversight of agency rulemaking procedures. 

Regulatory Flexibility Act 

As a means of reducing the Federal regulatory burden on small busi- 
ness, the committee will again consider the Regulatory Flexibility Act. 
This measure passed the Senate too late in the 95th Congress for the 
House to act on the bill prior to adjournment. 

The Regulatory Flexibility Act would require Federal agencies to 
tailor their administrative procedures to the size and needs of various 
groups to ensure that these administrative procedures do not place any 
unnecessary burdens on individuals, small businesses, small units or* 
Government, or small organizations. To accomplish these ends, Fed- 
eral agencies would be required to seek greater participation of affected 
groups in formulating rules, and to solicit and consider less costly 

(32) 



33 

regulatory alternatives which would meet the legislatively established 
goals of the regulations. Any agency which rejected a less expensive 
alternative would have to explain why it did so. Also any proposed 
regulations which create significant paperwork demands would be sub- 
ject to public comment, including suggestions for less burdensome ap- 
proaches. Finally, the bill provides for periodic review of agency rules 
to evaluate their continuing validity. 

Early legislative action is planned on this measure. 

Public Participation in Federal Agency Proceedings 

At present many citizens are excluded from effective participation 
in government decisionmaking because of the high cost of making 
useful presentations to Federal agencies. This frequently results in 
a failure by Federal agencies to consider fully the public impact of 
agency decisions and a feeling on the part of many Americans that 
effective participation in government decisionmaking is the exclusive 
province of well-heeled special interests. 

In response to this problem, the committee will continue its consid- 
eration of legislation that would : ( 1 ) permit Federal agencies to pay 
the costs of citizens and citizen groups in agency proceedings if such 
participation can reasonably be expected to contribute substantially 
to a fair determination of the proceeding and if the citizen groups 
do not have sufficient resources available to participate effectively, 
and (2) authorize Federal courts to award attorneys fees to persons 
who bring suit for judicial review of agency action if the person is 
successful and if such suit serves an important public policy. 

During the 94th Congress, legislation regarding this matter was 
favorably reported to the floor, but the Senate did not have an oppor- 
tunity to act on the bill prior to its final adjournment. During the 
95th Congress, a similar bill was considered by the Judiciary Com- 
mittee, but the committee failed to report the bill on an 8 to 8 tie 
vote. During the last few years, however, seven Federal agencies have 
administratively established public participation funding programs 
and two more agencies are in the process of establishing such pro- 
grams. During the 96th Congress, the committee plans to give further 
consideration to instituting such programs in all Federal agencies. 

Administrative Conference 

The committee is responsible for oversight of the Administrative 
Conference of the United States. This body, established in 1968, is 
charged with responsibility to "study the efficiency, adequacy, and 
fairness of the . . . procedures used by administrative agencies" and 
make recommendations for any necessary improvements to protect 
more fully private rights and perform more expeditiously public re- 
sponsibilities. The Administrative Conference reports its conclusions 
directly to the agencies, the President, Congress, or the Judicial Con- 
ference of the United States. 

One of the major reports which will be submitted to Congress in 
the next 2 years is the Conference study of the new Federal Trade 
Commission rulemaking procedures. The study mandated by the 
Magnuson-Moss Federal Trade Commission Improvement Act, will 



34 

be considered by the plenary meetings of the Conference in June and 
December 1979. A section of the report is expected to focus on FTC 
policy of compensation for public participants. In view of the commit- 
tee's interest in public participation in agency proceedings, the report 
will be given careful consideration. 

In a time when regulatory reform is of critical concern, the com- 
mittee will examine the working of the Conference to assure that its 
potential for contribution is maximized. It is anticipated that the 
committee will explore proposals for strengthening the body and ex- 
panding its mandate during the 96th Congress. 

Government Information Policies 

The committee remains in the forefront of the Senate's efforts 
in matters involving Government information policies and practices. 
Those areas of particular concern this session will be the Freedom of 
Information Act, legislation relating to criminal justice information 
systems, and the impact of evolving telecommunications and data 
processing technologies on the collection, maintenance, use and dis- 
semination of personal information. The committee also anticipates a 
major presidential initiative setting forth a comprehensive privacy 
policy in response to the Privacy Protection Study Commission's rec- 
ommendations on private sector records. Access, the right to chal- 
lenge, correct and amend records, limitations on collection and dis- 
closure, notification, and sanctions are key elements of the policy, 
and will be the subject of considerable review by the committee. 

Freedom of Information Act 

The committee has jurisdiction over the Freedom of Information 
Act (FOIA), which provides the public access to Federal Govern- 
ment information. In exercising that responsibility during the last 
Congress, the committee issued a summary report of hearings on 
agency implementation of the 1974 amendments to the Freedom of 
Information Act, monitored proposed legislation pertaining to the 
act, surveyed agency FOIA fee waiver practices, and published a com- 
pilation of State freedom of information laws. 

During the 96th Congress, the committee will examine administra- 
tive and statutory changes that could minimize the problems of long 
dela}-s in responding to requests; arbitrary imposition of excessive 
fees; and unexplained denials or deletions, and also help create in- 
centives for agencies to administer the Act so that its promise be- 
comes a reality. Additionally the committee will continue to monitor 
proposed FOIA legislation which, directly or indirectly, would di- 
minish the public's right to Government information. Included are 
bills which result in exempting certain agencies or programs from 
FOIA requirements or otherwise affect the amount of information 
that would be available under the FOIA. 

Privacy 

In overseeing the practices and procedures of governmental agen- 
cies, the committee has long been concerned with the adequacy of 
agency efforts to protect the civil liberties and due-process rights of 



35 

citizens. During the last Congress, the committee began a review of the 
Government's use of computerized information for purposes unrelated 
to the reason for which it was collected. This review focused on the Tax 
Administration System of the Internal Revenue Service, the National 
Crime Information Center of the FBI, and various computer opera- 
tions of the Civil Service Commission and the Department of Health, 
Education, and Welfare. During the 96th Congress, the committee will 
continue to monitor the rapid increase in Government computer banks 
to ensure that privacy considerations are adequately protected. 

Federal Tort Claims Act Amendments 

During the second session of the 95th Congress, a report was pre- 
pared for the committee on the Justice Department's policy of hiring 
private counsel to represent Federal employees in civil lawsuits al- 
leging violations of constitutional rights. The report concluded that 
the practice was subject to the following criticisms: lack of statutory 
authority to retain private counsel who are independent of department 
control ; independent private counsel may raise legal arguments which 
are contrary to the public interest; the practice may interfere with 
criminal investigations of the same conduct; and the practice is ex- 
tremely expensive. 

As an alternative to that policy, the Department proposed amend- 
ments to the Federal Tort Claims Act which would immunize Federal 
employees, and provide an exclusive cause of action against the United 
States in cases in which the Attorney General certifies that the Gov- 
ernment employee in question was acting within the scope of his or 
her "office or employment or under the color thereof." 

During the committee's consideration of the measure, the primary 
objection to the proposal was to the grant of blanket immunity to Fed- 
eral employees no matter how egregious their conduct. In the wake of 
the Watergate and intelligence community excesses, many witnesses 
expressed the view that some method of accountability for individual 
actions must be maintained. 

Following the hearings and extensive discussions with the Depart- 
ment of Justice, a substitute proposal was developed to provide for a 
more limited form of immunity as well as internal agency discipli- 
nary mechanisms. Unfortunately the session ended before the commit- 
tee could take final action on legislation. Amendments to the Federal 
Tort Claims Act will again be considered in the 96th Congress. 



REGULATORY REFORM 

Applicability of Antitrust Principles 

The committee will examine the extent and effects of existing anti- 
trust immunities in selected regulated industries including the motor 
carrier, freight forwarder, rail, ocean shipping and insurance indus- 
tries. Legislative proposals will be considered which reduce or elimi- 
nate such immunities. 

By permitting private restraints of trade in the industries where 
they apply, antitrust immunities tend to reduce competition, limit out- 
put and increase prices. The result is not only an inefficient allocation 
of resources ; in addition, inflation is fueled by higher prices, employ- 
ment is lost as a result of restricted output, and consumers pay unneces- 
sarily high prices for their goods and services. 

Hearings held last year by the Judiciary Committee indicated that 
consumers paid approximately $2 billion a year in higher prices as a 
result of the antitrust immunity in the motor carrier industry alone. 
Those hearings resulted in legislation to be considered in this Congress 
to apply the antitrust laws to the motor carrier industry so as to make 
illegal the price-fixing that is presently allowed. 

Motor Carrier Industry 

For the past 18 months, the committee has been involved in an exten- 
sive investigation of anticompetitive practices in the trucking industry. 
Initiated by Senator Kennedy during his tenure as Chairman on the 
Antitrust and Monopoly Subcommittee during the 95th Congress, the 
investigation has focused on private restraints on competition in the 
form of legalized price-fixing agreements by freight motor carriers 
under a statutory grant for immunity from the antitrust laws. These 
price-fixing arrangements, through which motor carriers are permitted 
to set uniform rates for commodities moving in interstate commerce 
for submission to the Interstate Commerce Commission, result in 
higher charges for freight transportation than would be the case if 
prices were openly arrived at through competition in an open market. 

The committee has also examined the system of "public" restraints 
on competition which affect prices for motor carrier services. These 
include the effectiveness of the ICC in scrutinizing rate proposals sub- 
mitted by the motor carrier rate bureaus. They have also included, to 
a very limited extent, the effect on rate levels of ICC restrictions on 
entry into the trucking business. The committee has been particularly 
concerned with unjustified revenues derived by holders of ICC route 
certificates who operate little or no equipment, yet who take a sizable 
percentage of the revenues earned by noncertified independent truck- 
ers who actually haul the freight under lease to the certificate holders. 

The committee's inquiry thus far has pointed up the central impor- 
tance to the maintenance of price levels in the industry of the antitrust 

(36) 



37 

immunity which sanctions price-fixing by motor carriers. The commit- 
tee intends to consider legislation to curtail drastically the scope of 
this exemption from the Nation's antitrust laws. 

Competition Improvements Act 

The Competition Improvements Act which the Judiciary Committee 
considered in both the 94th and 95th Congresses (and which will be 
considered by the committee this Congress as well) is an attempt to 
deal generally with the problem of government regulations which im- 
pede rather than promote competition. The Competition Improve- 
ments Act, which is cosponsored this Congress by Senator Kennedy 
and Senator Hatch of the Judiciary Committee, was recently endorsed 
by the President's National Commission to Review Antitrust Laws 
and Procedures. The Act prohibits the imposition of anticompetitive 
regulations unless the agency involved finds that the regulation is 
essential to accomplish an overriding statutory purpose and that there 
is no less anticompetitive regulation that would essentially accomplish 
that purpose. 

Anticompetitive Effects of Government Regulation 

By eliminating and reducing existing antitrust immunities, the 
committee hopes to reduce existing private restraints of trade in 
regulated industries. The committee will also address the Government 
imposed restraints of trade that result from anticompetitive 
regulations. 

For example, it is estimated that in addition to the $2 billion cost of 
private price-fixing in the motor carrier industry, Government regula- 
tions cost consumers an additional $3 to $5 billion a vear. 



DEPARTMENT OF JUSTICE AUTHORIZATION AND 

OVERSIGHT 

The American people have traditionally been concerned with the 
effectiveness of the criminal and civil justice systems and the quality of 
justice they render. There are increasing demands for greater efficien- 
cies in Government and more targeted use of public resources. These 
two concerns, although not necessarily inconsistent, render the need 
for thorough oversight all the more crucial. 

The Judiciary Committee is determined that the justice process will 
remain a firm and fair force in our society. To that end, it will respond 
to these challenges by instituting a series of oversight hearings on the 
Department of Justice, its programs and their performance. 

The first series of hearings Avill focus on the performance and re- 
source needs of the Department of Justice and its organizations and 
will result in authorization legislation in mid-spring. The second series 
of hearings will focus on key justice issues, addressing the impact on 
these issues by the Department of Justice's various organizations. 

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INVESTIGATIONS 

The Investigations unit of the Committee is assigned to provide the 
Committee with support in any area of inquiry deemed necessary and 
appropriate by the committee. Thus far, the following inquiries are 
underway for the first session of the 96th Congress: (1) Committee 
confirmation of executive branch nominees to the Federal bench; (2) 
evaluation of policy, procedure and administrative practice within the 
Antitrust Division, Department of Justice, in the handling of com- 
plaints, investigations and litigation; (3) analysis of the effects of the 
Department of Energy's policy, procedure and administrative prac- 
tice on competition in the energy industries; (4) continuing investiga- 
tive support of an ongoing inquiry into Federal regulation of the 
freight motor carrier industry; (5) continuing inquiry into the policy, 
procedure and administrative practice in Federal regulation of pesti- 
cides, and (6) continuing inquiry into the policy, procedure and ad- 
ministrative practice of the Food and Drug Administration in the reg- 
ulation of foods, drugs and cosmetics. 

It is anticipated that additional assignments will be undertaken as 
the first session of the 96th Congress progresses. 

(39) 
O 



UNIVERSITY OF FLORIDA 



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